Health Ombudsman v Farrar [2021] QCAT 78

Health Practitioner Regulation National Law (Queensland), s 5, s 130

Chiropractic Board of Australia v Northeast [2019] VCAT 1279

Health Ombudsman v Gillespie [2021] QCAT 54

Legal Services Commissioner v McLeod [2020] QCAT 371

Medical Board of Australia v Martin [2013] QCAT 376

Psychology Board of Australia v Cameron [2015] QCAT 227

• [1] This is a referral of a health service complaint against David John Farrar (respondent) pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act) by the Director of Proceedings on behalf of the Health Ombudsman (applicant).
• [2] The applicant seeks a finding of professional misconduct and orders for sanction pursuant to section 107 of the HO Act. The parties have submitted a joint position as to the facts of the conduct, its characterisation as professional misconduct and appropriate orders for sanction.
• [3] The respondent was first registered as a medical practitioner in New South Wales in late 1978. Since that time, he has continuously held general registration as a medical practitioner, first with the New South Wales Medical Board and then with the Medical Board of Australia (Board). During 1997, the respondent was licensed to practise as a physician in the United States of America, including in the Commonwealth of Massachusetts. The respondent obtained specialist registration in general practice with the Board on or about 2 July 2014 and since about July 2014 has practiced as a general practitioner in Queensland.

• [4] The conduct the subject of the referral relates to several occasions on which the respondent failed to comply with his obligations to the Board under the Health Practitioner Regulation National Law (Queensland) (National Law) to provide information during the process of renewing and seeking registration and the notification of relevant events.
• [5] In July 2012, the respondent was charged with criminal offences in the Commonwealth of Massachusetts. On 15 March 2013, the respondent pleaded guilty to criminal offences in Massachusetts and was sentenced to a term of imprisonment and probation. On 23 July 2013, the respondent was released from prison and returned to Australia in August 2013.
• [6] Prior to 31 August 2012, the Commonwealth of Massachusetts Board of Registration in Medicine (Massachusetts Board) was notified that the respondent had been charged with criminal offences. On 31 August 2012, the respondent signed a voluntary agreement not to practise medicine in Massachusetts, which was accepted by the Massachusetts Board on 19 September 2012. The voluntary agreement suspended the respondent's licence or otherwise restricted the respondent from practicing medicine in Massachusetts. On 11 October 2012, the respondent's licence to practice medicine in Massachusetts was due for renewal. The respondent did not renew his licence, and it lapsed. On 17 April 2014, the Massachusetts Board commenced disciplinary proceedings against the respondent.
• [7] The conduct the subject of the referral relates to the respondent's failure to notify the Board of these events that occurred in Massachusetts, as required by section 130 of the National Law, and also by the false answers given to the respondent upon applications for renewal of registration with the Board and upon his application for specialist registration as a general practitioner with the Board.
• [8] The respondent accepts that he was required by the terms of section 130 of the National Law to notify the Board within seven days after being charged with criminal offences in July 2012, entering into the voluntary agreement on 31 August 2012, and his conviction on 15 March 2013 of criminal offences. The respondent did not notify the Board of such matters as required by section 130 of the National Law.
• [9] On 20 October 2012, the respondent submitted an online application to the Australian Health Practitioners Regulation Agency (AHPRA) to renew his registration as a medical practitioner with the Board. When completing the online application, the respondent provided the following answers:

(a) The respondent responded, "no," to a question, "During your preceding period of registration, has there been any change to your criminal history that you have not declared to AHPRA?"

(b) The respondent responded, "N/A", to a question which read as follows:

Have you previously disclosed to AHPRA all known complaints made about you to a registration authority or other entity having functions related to professional services provided by health practitioners or the regulation of health practitioners (in Australia or elsewhere)?

• [10] The respondent's answers to such questions were false in that he had been charged with criminal offences in Massachusetts, the definition of "criminal history" in section 5 of the National Law encompassed such charges, and he had not previously declared such changes to his criminal history by notifying AHPRA or the Board, and the respondent had been the subject of a complaint to the Massachusetts Board and had not previously disclosed such complaint to AHPRA or the Board.
• [11] On 10 August 2013, the respondent submitted an online application to AHPRA to renew his registration as a medical practitioner with the Board. When completing the online application, the respondent provided the following answers:

(a) The respondent responded, "no," to a question, "Have you been absent from practice for more than 12 months?"

(b) the respondent responded, "no," to a question, "During your preceding period of registration, has there been any change to your criminal history that you have not declared to AHPRA?"; and

(c) the respondent responded, "yes," to a question which read as follows:

Have you previously disclosed to AHPRA all known complaints made about you to a registration authority or other entity having functions related to professional services provided by health practitioners or the regulation of health practitioners (in Australia or elsewhere)?

• [12] The respondent's answers to questions (a) and (c) were false for the reasons already stated. The respondent's answer to question (b) was false as the respondent had been absent from practice for more than 12 months.
• [13] On 23 May 2014, the respondent completed an application form for specialist registration with the Board. The application provided that the respondent should read a number of statements regarding the obligations of registered health practitioners before signing and dating the form. The statements, among other things, included a statement regarding the requirement for the respondent to report relevant events pursuant to the National Law. The respondent did not notify the Board of any relevant events at the time he completed the application for specialist registration.
• [14] The respondent admits and the Tribunal accepts that the admitted conduct of the respondent constitutes professional misconduct as defined in limb (b) of the definition of that term in section 5 of the National Law, being:

...more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.

• [15] The Tribunal decides, pursuant to section 107(2)(b)(iii) of the HO Act, that the respondent has behaved in a way that constitutes professional misconduct.

• [16] When considering the appropriate orders by way of sanction for the respondent's admitted professional misconduct, it is important to note the circumstances of the respondent at the times of the relevant failures to notify of relevant events and the times of the false statements on applications for renewal of registration and for specialist registration.
• [17] Within one week of first being charged with criminal offences in Massachusetts, the respondent was taken into pre-trial custody and denied bail. He was held in prison for approximately three months until 16 October 2012. He was returned to custody on about 4 December 2012 and released from prison on 23 July 2013.
• [18] At the time of his online application on 20 October 2012, he had only been out of prison for less than a week. The respondent deposes that he was in a very fragile psychological state, suffering post-traumatic stress from his experiences in prison, was anxious, unable to sleep and depressed. The Tribunal accepts evidence from a psychiatrist who treated the respondent upon his return to Australia in 2014 that the respondent's mental state would have compromised his decision-making in those circumstances.
• [19] At the time of the online application on 10 August 2013, the respondent had been out of prison for less than three weeks and was anxious to leave the United States. He was living in a motel with what possessions he had in boxes, trying to make arrangements to leave that country. The respondent deposes he was in a very fragile psychological state, suffering post-traumatic stress from his experiences in prison, was anxious, unable to sleep, and was depressed. Once again, the Tribunal accepts that such circumstances would have compromised the respondent's decision-making.
• [20] At the time of 23 May 2014 online application, the respondent was living in the United Kingdom and it is his recollection that, at that time, he believed that AHPRA was aware of his prior criminal history. At that time, he was still suffering from a major depressive episode following his experience in jail and deposes that he was making poor decisions as a consequence.
• [21] In those circumstances, the respondent contends, and the applicant specifically accepts, that the respondent's conduct was reckless rather than intentionally dishonest. Given that joint submission by the parties, the Tribunal is prepared to proceed on that basis.
• [22] AHPRA received a notification regarding the respondent on 1 May 2014. AHPRA wrote to the respondent in relation to such matter on 27 May 2014. On 29 May 2014, the respondent attended the AHPRA office and spoke to staff about the notification.
• [23] Sometime after the commencement of the Office of the Health Ombudsman in July 2014, AHPRA referred the matter to the Office of the Health Ombudsman (OHO). The respondent was interviewed by OHO investigators on 21 November 2014 and made some admissions. In December 2014, OHO staff sought information from the Massachusetts Board and had received such information by 13 January 2015.There is then an unexplained delay before the next event in the investigation of which the Tribunal has been made aware, namely, a request by OHO staff for further information from the Massachusetts Board by way of an email from OHO staff on 8 March 2018.
• [24] The Tribunal sought information from the applicant as to what may have caused such a hiatus of more than three years. No specific information was forthcoming from the applicant other than the familiar reference to historical delays in the investigation and prosecution of matters in the earlier years of the existence of the OHO.
• [25] The referral was filed in the Tribunal on 22 March 2019. Any delays in the prosecution of the matter in the Tribunal have been as a result of the need for negotiations between the parties and further investigation of matters, which have resulted in the parties led to the parties reaching an agreement as to a joint position.
• [26] The agreed position of both parties as to orders for sanction is that the respondent be reprimanded, fined $15,000 with six months to pay, and that each party bear its own costs.
• [27] That agreed position was reached having consideration to a number of factors, including:

(a) the inordinate delay in the investigation of the matter by the OHO, which has had the consequence that the respondent has suffered the uncertainty of delay in resolution of the matter;

(c) the respondent voluntarily seeking appropriate psychiatric treatment in 2014 upon his return to Australia and continuing to obtain appropriate treatment;

(d) the respondent continuing to practice over the intervening period without complaint or concern; and

(e) the respondent's co-operation in the conduct of proceedings before the Tribunal.

• [28] This is a somewhat unusual case in that the conduct consists entirely of the failure to comply with obligations pursuant to the National Law to report to, and keep informed, the Board as to relevant events. In most cases, such conduct is ancillary to additional substantive misconduct underlying the need to notify. That makes reference to the comparative cases referred to by both parties of little utility.
• [29] Perhaps the most comparable is that of Chiropractic Board of Australia v Northeast [2019] VCAT 1279, in which a practitioner, who practised without holding professional indemnity insurance for a period of nine months, failed to notify the relevant Board of that conduct and falsely completed two registration renewal applications and an order checklist. For the totality of that conduct, the Tribunal found that practitioner engaged in professional misconduct and reprimanded the practitioner, imposed a condition on his registration and suspended his registration for one month. The parties point to an arguable equivalence in severity of a one-month suspension as compared to a fine of $15,000 and submit that the balance falls in favour of a fine rather than a suspension, particularly in light of the delay in prosecution of the matter.
• [30] Determination of sanction remains a discretionary matter for the Tribunal notwithstanding any agreement between the parties. However, the Tribunal ought not readily depart from a proposed sanction agreed between the parties unless it falls outside a permissible range of sanction.[1]
• [31] The purpose of sanction is to protect the public, not punish the practitioner. A reprimand is not a trivial penalty and has the potential for serious adverse implications to a professional person.[2] Such a reprimand remains on the public register until such time as the Board considers it appropriate to remove it.[3]
• [32] The Tribunal accepts that the sanction jointly proposed by the parties does, in the particular circumstances of this case, fall within a permissible range of sanction. The orders of the Tribunal are:
  1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.
  2. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
  3. Pursuant to s 107(3)(c) of the Health Ombudsman Act 2013 (Qld), the respondent is required to pay a fine of $15 000 to the applicant within a period of six months from the date of this order.
  4. Each party must bear the party's own costs of the proceeding.

[1] Legal Services Commissioner v McLeod [2020] QCAT 371 at [31]- [32] and Medical Board of Australia v Martin [2013] QCAT 376 at, [91]-[93].

[2] Psychology Board of Australia v Cameron [2015] QCAT 227 at [25].

[3] Health Ombudsman v Gillespie [2021] QCAT 54.